Adoption and Divorce

My husband and I are contemplating a divorce. Will our daughter's adoption status figure into the legal proceedings?

A wedding cake split in half showing adoption and divorce

First off, the specifics of how your adoption took place, be it domestic or international, be it independent or agency adoption, must be clearly spelled out at the initial consultation with your attorney.

Your Child’s Legal Status

When an adoptive family encounters divorce and custody proceedings, the legal status of the child becomes relevant. Many states provide for the recognition of a foreign adoption, and, therefore, the child would be treated no differently than if he or she were your biological child. However, in some rare circumstances, the foreign adoption decree may list only one of the adoptive parents, a fact which can become important in a custody dispute. An issue may arise if your state of residence requires that you readopt your child in your state court and you have yet to complete that process. Fortunately, current federal law provides, in most cases, that children adopted by United States citizens automatically become American citizens upon their entry into the U.S. However, it’s never certain how a child’s birth country might react to a post-placement report revealing that the adoptive parents have separated.

In a private, domestic-agency adoption, physical custody of the child will rest with the adoptive parents after birth, however, legal custody will remain with the agency. The agency will retain legal custody of the child until the adoption is finalized by the adoptive parents, a process that can easily take several months. A public, domestic agency will also have legal custody of children in its care until finalization.

The Couple’s Legal Status

In a private adoption, the birth parents’ consent will most likely have been in favor of both adoptive parents, with the understanding that the couple would adopt the child. Therefore, depending on whether parental rights have actually been terminated, the validity of the consent may be at issue. In a domestic agency adoption, should the adoptive parents separate, the agency may be reluctant to issue its consent to the finalization of the adoption if the adoptive parents no longer exist as a married couple residing together.

Adoptive parents who have divorced prior to finalizing their adoption may face a significant hurdle in creating a legal parent-child relationship. For example, the Oklahoma Court of Civil Appeals recently held that it was improper to allow a divorced couple to file separate adoption petitions for the same child following their divorce. However, some state adoption laws do excuse a petitioner’s spouse from joining in the adoption petition if certain circumstances exist. For example, Maryland’s adoption laws provide that the petitioner’s spouse need not join in the petition if the spouse is separated from the petitioner under circumstances that give the petitioner grounds for divorce or annulment. In almost all scenarios, should adoptive parents find themselves separated and progressing toward a divorce prior to finalizing their child’s adoption, it is prudent to finalize the adoption before the divorce becomes final.

In reviewing a petition for adoption, the court will look to the fitness of the adoptive parents’ home. Whether the adoptive parents are residing together may go to the heart of that consideration. Yet it should always be kept in mind that, even with the stress and trauma of divorce and custody proceedings, courts look at what is in the best interest of the child. Divorcing parents can still provide a loving household, or two.

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